Throughout our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction. It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse. To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.”

Who hijacked the president’s pardon power? Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship. It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration. Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.

It’s becoming more rampant now than it ever was, largely because of the advances being made in technology and communications. White collar crime is now the main tool for those who want take the easy road to riches and wealth – yes, there is hard work involved, but it is all directed to the immoral and unethical practices of fraud, forgery, embezzlement and trickery. We’re all aware that white collar criminals are punished differently from those who commit blue collar crimes like murder, rape, arson, burglary and assault, and there is considerable debate on why this discrimination exists. With federal sentencing guidelines for these crimes being advisory rather than mandatory, it is up to the presiding judge to use their discretion in deciding how to punish the criminal.

In general, white collar crimes are punished by a large monetary fine and/or some time in prison. Some criminals may even be let off after being set to perform social service while others may be confined to their home as punishment. No matter how you look at it, white collar crime seems to be higher up on the ladder than the blue collar variety. The criminals are mostly rich enough to be able to fork out the fines (without it affecting their financial standing significantly) and/or bribe people to get their sentences reduced.

There are two schools of thought on imposing punishment for white collar crime:

The Kantian Method: takes a stand that white collar crime is as bad as the blue collar kind and so, must be punished on similar levels. According to the Kantian perspective, white collar criminals must be punished to the full letter of the law. By Kant’s argument, the people who perpetrate the crime are acting rationally, and this means that they should suffer the consequences of their actions.

The Utilitarian Method: follows the idea that if the crime is for the "greater good", then it is not punishable or punishable by lenient methods. Those who believe in this perspective tend to take the view that it is acceptable to accept plea bargains if some criminals turn state’s witnesses and turn their partners in crime in. Here, punishment is doled out according to the final utility value created.

Both perspectives have their pros and cons – with the Kantian method, we can justify that every white collar criminal knows what they are doing and are completely rational in their thoughts and actions. Also, they fail to consider the effect that their actions have on the people they defraud or cheat – lives are ruined and some victims are even driven to commit suicide. Also, if burglary is a blue collar felony, then why are large scale frauds and embezzlements treated under the more fanciful umbrella of white collar crime?

The Utilitarian method begs the question – who decides what the greater good is? What’s good for you may not be as good for me, so under what conditions is the overall utility value of the crime judged?

Punishment in white collar crimes must be severe enough to prevent the perpetrator from repeating their ways and also a definite deterrent to others who want to tread the same path. And with most white collar criminals being rich with deep pockets, the only thing they’re probably afraid of is time in a maximum security prison.

A Note by Duke law student Derick R. Vollrath presents an important view on white collar sentencing. The Note titled, Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases, states in the abstract that "[m]oreover, the loss calculation fails to adequately approximate a defendant’s culpability, dwarfing traditionally relevant considerations such as the manner in which the defendant committed the crime and the defendant’s motive for doing so."

The University of Texas, The Review of Litigation's Symposium this year was devoted to white collar crime. Titled, White Collar Crime and the Changing Corporate Environment, Chief Symposium Editor Heather Mahurin and staff did an incredible job of bringing together top practitioners and a judge to examine the evolution of white collar crime and factors affecting this area. The event was sponsored by the law firm of Vinson & Elkins. I had the pleasure of being the first speaker and providing an evolution of white collar crime.

The first panel of Tim McCormick (Thompson & Knight) and Carl Wessel (DLA Piper) looked at internal investigations and when one should seek outside counsel. It was not surprising to hear them mention the recent FCPA investigations, noting that the pharmaceutical area seems to also be part of the recent DOJ focus. Tim McCormick also talked about the concerns that get raised with Upjohn warnings.

A second panel looked at white collar crime prosecutions and it was appreciated that the Hon. Jennifer Coffman, Chief Judge of the Eastern District - Kentucky offered a judicial perspective. Along with Kent Schaffer (Bires and Schaffer), there was a good bit provided on how emails were affecting the landscape of white collar cases. Mr. Shaffer noted how "people put things in emails that are shocking." Telling "the story" to the jury is important, as is humanizing one's client. The participants on this panel also provided wonderful information on dealing with experts in white collar cases. The expert needs to be "not too academic" and "clear."

A final panel was focusing on parallel proceedings and included top individuals like Solomon Wisenberg (Barnes & Thornburg). It will be good to see the published works from this important symposium.

SEALS Call for Papers

Law Professors - The Southeastern Association of Law Schools (SEALS) has a call for papers -

CALL FOR PAPERS

A roundtable discussion will be held at SEALS 2010 on "Re-evaluating Corporate Criminal Liability."

Among the questions that deserve focus in this area are the following:

Should we discard corporate criminal liability?

Should we expand corporate criminal liability?

Should we modify the ALI standard for corporate criminal liability?

Can tort actions properly accommodate corporate misconduct?

Is corporate regulation sufficient to handle corporate misconduct?

Participants will prepare a paper of approximately ten pages related to this topic, and the papers will be distributed prior to SEALS 2010. At SEALS, each of the participants will be given a few minutes to summarize their paper, which will be followed by a moderated discussion on the topic.

Two of the participants in this roundtable will be selected from a Call for Papers that will be reviewed by Professor Joan Heminway (Tennessee), Professor Andrew Taslitz (Howard), and Professor Ellen S. Podgor (Stetson).

Papers must be received by January 1st to be considered for this Roundtable. You are welcome to submit an abstract by this deadline, but papers are more likely to be given stronger consideration. Submit all papers to Ellen S. Podgor at epodgor@law.stetson.edu

The University of Chicago's Legal Forum - 2009 Symposium on Crime, Criminal Law and the Recession -began with opening remarks from Anton Valukas(Jenner & Block), who many remember as the former United States Attorney from the Northern District of Illinois in the days of Greylord. Now appointed the Examiner in Lehman Brothers Holdings bankruptcy, he was speaking as the opening keynote on recession and crime. He reminded us of the history of downturns in the economy and how individuals "get caught" when the economy goes soar. He spoke also about the role of lawyers, accountants, and other gatekeepers.

The first panel was Brian Walsh from the Heritage Foundation and myself. Brian Walsh, in a well received talk, stressed how the tools to fight the criminality have been there and adding more to the federal criminal code is not the answer. My talk looked at accountability (the lack of it at the time), who people are blaming (not necessarily accurately), and what transparency will provide us with in the future. A concern, which will be a focus of my paper, is with the diminishing media and its potential impact on investigative reporting that brings to light criminality, oftentimes government corruption.

This paper is about the corporation as criminal defendant. In common-law legal systems a fully constituted criminal offence normally requires proof of both the proscribed action (actus reus) and criminal intent (mens rea). However, it appears highly artificial to describe corporate mens rea with ordinary language terms such as “knowledge,” “belief,” “desire,” or “intention.” After a review of common-law and philosophical approaches to imputing criminal intent to the corporate defendant, this paper proposes a behavioral approach to attributing mens rea to corporations and concludes with a review of the (UK) Corporate Manslaughter and Homicide Act 2007 which, it is submitted, adopts just such an approach.

This manuscript discusses how the Department of Justice (DOJ) has viewed waiver of the attorney-client privilege as an important factor evidencing cooperation when determining whether to enter non-prosecution or deferred prosecution agreements with firms allegedly involved in criminal activities. It further discusses recent changes to the DOJ's guidelines, purporting to take waiver out of the equation in deciding whether to prosecute. Questions remain as to whether the corporate attorney-client privilege is a relic of the past or whether the new guidelines, issued in August, 2008, have indeed restored the privilege to firms under federal investigation.

The current environment is highly supportive of increased government regulation, particularly in the financial field. One of the beneficiaries of this push for greater oversight of the markets appears to be the Securities & Exchange Commission, despite some recent high profile enforcement failures, most particularly the massive Ponzi scheme undertaken by Bernie Madoff. In this essay, I raise the question whether the SEC should retain its enforcement authority over fraud cases, or whether it would be better served if that function were shifted to the Department of Justice. The SEC’s recent push to take on a more prosecutorial air gives the clear impression that an adversarial approach to enforcement of the securities laws is in order. However, the Commission must continue to solicit the views of Wall Street to fulfill its regulatory function, much like Madoff was included in the SEC’s deliberations on rules related to the stock market. At some point in the future, the push for greater regulation is likely to pass from the scene as the pendulum swings back toward a less intrusive approach to oversight. Whether the Commission can resist renewed entreaties to go easier on enforcing the law to free the capital markets from strict regulation is an open question. To allow the SEC to regulate Wall Street properly, splitting off at least a portion of the enforcement function to an agency with expertise in prosecutions - the United States Department of Justice - is at least worthy of consideration as the government looks to increase regulation.

Associate AG Perrelli states at the Pfizer Settlement Press Conference:

"today’s settlement reflects the Department of Justice working hard to protect American taxpayer dollars. This case is a great example of the Department’s commitment to fiscal accountability, combating fraud, and returning much-needed dollars back to the U.S. Treasury and state treasuries."

It is good to know that in these days of fiscal downturn, money is being obtained from a company that engaged in conduct disapproved by DOJ. (see here for background) But wouldn't it have been better if the wrongdoing had not occurred in the first place. I have to wonder what the government is doing pro-actively as opposed to re-actively to assure corporate compliance. Perhaps more dollars need to to be spent on "Educating Compliance" My forthcoming article, "Educating Compliance" to be published in Georgetown's American Criminal Law Review can be found here.

The United States Securities and Exchange Commission ("SEC") is hard at work remaking and re-energizing both its image and law enforcement role. It is also trying to ensure its survival as the premier agency overseeing the financial markets. It has assembled a new team at the helm, including a former federal prosecutor as head of the Enforcement Division and a new SEC Chairman, Mary Schapiro, who has committed herself to revitalizing the agency and has the Washington regulatory background to succeed. . .

Andrew George, Alexandra Walsh, and Bridget Moore, attorneys with Baker Botts LLP, authored a new article in 9 Criminal Litigation (2009) titled "Kimbrough, White Collar Sentencing, and the New Primacy of the Sentencing Commission." One point made in this article is that "in this new era of commission primacy, defendants may not make much headway focusing on sentencing factors available only to the wealthy, white collar offenders. Rather, they are probably better served by highlighting factors available to all - factors like age, health, lack of criminal history, commitment to family, or community service."

Professor Miriam Baer of Brooklyn Law School has a new piece on SSRN that will be published in the Virginia Law Review. Titled, Linkage and the Deterrence of Corporate Fraud, she says that the Article "focuses on the difficulties of deterring perpetrators of fraud who are in the midst of their crimes, as opposd to potential perpetrators who are merely considering committing such crimes." She argues "that when law enforcement policies change (ie, harsher sanctions or promises of more stringent monitoring), mid-fraud perpetrators behave differently from potential perpetrators and, perversely, may perpetrate greater harm in response to traditional increases in sanctions and monitoring resources." She suggests policy changes. The Article can be found here.